Bombay High Court
Basant Vihar Co-Operative ... vs State Of Maharashtra (Revenue ... on 14 February, 2022
Bench: S.J. Kathawalla, Milind N. Jadhav
Kanchan P Dhuri 1 / 11 WPL-7537-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 7537 OF 2021
Basant Vihar Co-operative Housing Society Limited,
A Co-operative Housing Society registered under
the provisions of the Maharashtra Co-operative
Societies Act, 1960 having its address at
Plot No.362/2 and Old Plot No. 364 and 363
Pt. of SS Scheme, Chembur, Mumbai - 400 071. ... Petitioner
Versus
1. State of Maharashtra (Revenue Department),
through the Office of Government Pleader,
High Court, Bombay, PWD Building, Fort, Mumbai.
2. The Superintendent of Land Records,
10th Floor, Administrative Building, Near Chetana
College, Bandra (East), Mumbai - 400 051.
3. The City Survey Officer, Chembur
Topiwala College Compound, Sarojini Naidu Marg,
Mulund (W), Mumbai - 400 080.
4. Municipal Corporation of Greater Mumbai,
having its address at Mahapalika Marg, Fort,
Mumbai - 400 001. ... Respondents
.........
Mr. Saket Mone alongwith Mr. Subit Chakrabarti and Mr. Devansh Shah instructed by
Vidhii Partners for the Petitioner.
Mr. Hemant Haryan, AGP for the State.
Ms. Rupali Adhate for the MCGM.
.........
Kanchan P Dhuri 2 / 11 WPL-7537-2021.odt
CORAM : S.J. KATHAWALLA AND
MILIND N. JADHAV, JJ.
RESERVED DATE : 21st January, 2022
PRONOUNCED DATE : 14th February, 2022
JUDGMENT (PER S. J. KATHAWALLA J. AND MILIND N. JADHAV J.) :
1. The present Petition has been filed by the Petitioner to challenge the
letter/communication dated 16th February 2021 whereby Respondent No. 3, the City
Survey Officer, Chembur, ("CSO"), has refused to mutate the name of the Petitioner
in the revenue records in respect of the subject property, for want of an NOC from the
Collector. The Petitioner is aggrieved by the insistence on the NOC of the Collector as
a pre-condition for mutating its name in the revenue records.
2. Shorn of unnecessary details, the short facts that are relevant for the
present dispute are set out hereafter.
2.1 A grant of the subject property was made by the Mamlatadar, South
Salsette, Taluka Bombay Suburban District, to one Basantrai Motiram, under Rule 43
of the then prevailing Bombay Land Revenue Rules, 1921 by way of a Form HH
(Exhibit 'A' to the Petition) on 27th August 1946. It is the case of the Petitioner that the
original owner,i.e. Basantrai Motiram, constructed seventeen flats and two garages on
the subject property. The Petitioner is a society of flat purchasers of the above flats,
registered on 2nd October 1967.
Kanchan P Dhuri 3 / 11 WPL-7537-2021.odt
2.2 It is the further case of the Petitioner that the legal heirs of the original
owner, Basantrai Motiram, conveyed the subject property to the Petitioner vide a
Deed of Conveyance dated 22nd August 1968, duly registered. As the members of the
Petitioner were desirous of redeveloping the existing building, which was in a
dilapidated condition, steps in this regard were taken. In the course of the above steps,
the Petitioner realised that its name was not reflected / mutated in the revenue records
in respect of the subject property and therefore the Petitioner filed an Application to
the CSO for mutating its name in the revenue records of the subject property on 9 th
February 2021.
2.3 By the impugned letter/communication dated 16 th February 2021, it was
informed to the Petitioner that its Application could not be proceeded with further,
without the NOC of the Collector. It is this letter/communication which is the subject
matter of challenge in the present Petition.
3. Mr. Mone on behalf of the Petitioner has broadly made the following
submissions:
(a) The grant being under Form HH, and there being no restriction on
transferability of the subject property, there is no question of any permission / NOC
of the Collector being required.
(b) Judgments of this Court have repeatedly laid down the legal position that
no such NOC is required for effecting a mutation in the revenue records.
Kanchan P Dhuri 4 / 11 WPL-7537-2021.odt
(c) The reliance placed on Section 37A of the Maharashtra Land Revenue
Code, 1966, is erroneous, as the same did not apply to the facts of the present case as
the proviso to Section 37A(2) clearly provides that the terms of the grant would
prevail in the event of any inconsistency; there is no fetter in the Form HH, which
required any such NOC, and therefore the provisions of Section 37A were inconsistent
with the terms of the Form HH, and the latter would prevail.
4. Mr. Hemant Haryan, Learned Advocate for Respondent No. 3, i.e. the
CSO, has broadly submitted as under:
(a) There exists an alternate remedy under Section 247 of the Maharashtra
Land Revenue Code, 1966, which the Petitioner ought to avail of.
(b) The Petitioner, in the garb of the present Petition is indirectly seeking
permission for redevelopment of the property.
(c) Under a Government Resolution dated 3 rd August 2019, there are certain
guidelines in respect of the subject property which are needed to be complied with.
(d) There are certain terms of the Form HH which govern the manner in
which the subject property can be used, and there is a penal provision in the Form HH
which applies in the event of contravention of those terms. These terms have to be
complied with, and the application should accordingly have been made in accordance
with the Government Resolution dated 3rd August 2019.
(e) Certain judgments were relied upon in the matters of Ghanshyamdas
Kanchan P Dhuri 5 / 11 WPL-7537-2021.odt
Agarwal &Anr. v. State of Maharashtra - Writ Petition No. 755 of 2004 and
Venkatesh SadanCo-operative Housing Society Limited & Ors. v. State of
Maharashtra & Ors., - Writ Petition No. 1883 of 2019.
5. Having heard the learned Advocates for both sides, we are inclined to
allow the Petition for the reasons set out hereafter.
6. Before we deal with the rival contentions, it will be appropriate to note
that this Court has considered the legal position which arises in the present case,
including the judgments relied upon by the learned Advocate for the Petitioner, (and
therefore the same are not reproduced herein to avoid duplication), in a recent
judgment in the matter of Sudhir Vasu Shetty v. CSO, Chembur & Anr. - Writ
Petition (L) No. 7184 of 2020 and the connected Writ Petition (L) No. 7193 of 2020 in
Charisma Builders Limited v. CSO, Chembur & Anr. (pronounced on 21st December
2021). A virtually identical issue had arisen in these cases, and by the above judgment,
while allowing the Petitions, this bench (S. J. Kathawalla J. and Milind N. Jadhav J.)
had held as under:
"9. We have considered the competing cases, and for the reasons set
out below, we are inclined to allow the Petitions and quash and set aside the
orders of the City Survey Officer.
10. The learned Counsel for the Petitioners have placed reliance on
the following judgments of this Court, which have categorically and
completely decided the issue as to whether permission of the Collector is
required, as a pre-condition for the City Survey Officer making necessary
mutation entries in the Record of Rights:
Kanchan P Dhuri 6 / 11 WPL-7537-2021.odt
i. M/s. Mangla Hospitality Limited v. State of
Maharashtra & Anr.
ii. Sanskruti Co-operative Housing Society Limited v.
State of Maharashtra & Ors.
iii. Point Developers Private Limited v. State of
Maharashtra & Ors.
iv. Geecy Developers &Anr. v. State of Maharashtra &
Ors.
11. By the above judgments three learned Division Benches and a
Learned Single Judge of this Court have categorically held in cases where the
original Agreement is either in Form 'HH' (as in Charisma's case) or by way
of a sanad in the form contained in Schedule H, no permission or NOC of the
Collector is required as a pre-condition for the City Survey Officer carrying
out mutation entries in the Record of Rights.
12. The Courts have categorically held, while inter alia, also dealing
with Section 37A, that no such NOC or permission of the Collector would be
required and accordingly the City Survey Officer in those cases has been
directed to decide the application for mutation, without insisting on the NOC
of the Collector. In this light of the matter, the issue is no longer res integra,
and on this ground alone the Petitions must be allowed.
13. As regards the contention based on Section 37A, admittedly in the
present cases the Deeds of Conveyance in favour of Shetty and Charisma
were dated 28th December 2001 and 8th September 2008 respectively. As
referred to above, this Court in Hindustan Unilever (supra) has already held
that Section 37A, which was introduced with effect from 3 rd March 2015, will
not operate retrospectively and therefore will not apply to documents of title
preceding that date. Thus, ex facie and as admitted by the City Survey Officer
in his Affidavits, Section 37A cannot apply to the transactions in question,
and there is accordingly no requirement for permission of the Collector as
contemplated therein.
14. Even otherwise, as held in the above judgments, if the sanad
provides for transferability (as in Shetty's case) or if the Form 'HH' contains
Kanchan P Dhuri 7 / 11 WPL-7537-2021.odt
no fetter to transferability (as in Charisma's case), then as per the first proviso
to Section 37A, the said lands could be transferred without requiring any
prior permission of the Collector under Section 37A.
15. The reliance placed on the Government Resolution dated 3rd
August 2019, is entirely inapposite. This Government Resolution, a
translation of which was placed on record by Mr. Dighe, does not relate to
making of mutation entries and merely provides for recovery of unearned
income in the event that 'B1' category lands are being converted to 'C'
category. As held by this Court in the above judgments, the making of a
mutation entry has nothing to do with the collection of unearned income,
which the Collector may otherwise be entitled to in law. At this stage, there is
no transfer being sought to be done from 'B1' category to 'C' category, and
the Government Resolution thus has no application to the present case.
16. We make it clear that this Court is not opining on whether the
Collector is entitled to levy any sum towards unearned income in the event an
application is made for transfer of the lands from 'B1' category to 'C'
category. If any such claim is made, the same may be proceeded with and/or
opposed on its own merits, and all rights and contentions of the parties in this
regard are kept open.
19. In the aforesaid circumstances, we pass the following order:
i. The Impugned Order dated 24th April 2019 in Writ
Petition (L) No. 7184 of 2020 and the Impugned Order
dated 9th October 2019 in Writ Petition (L) No. 7193 of
2020 are quashed and set aside. Rule is made absolute in
the above terms.
ii. The applications filed by the Petitioners shall forthwith
be processed by the City Survey Officer without
insisting on the NOC or permission of the Collector and
without raising any questions of title or objection on the
names appearing in the PR Card being different from
the name of the vendor in the Deed of Conveyance in
Kanchan P Dhuri 8 / 11 WPL-7537-2021.odt
favour of Shetty.
iii. The above applications shall be processed, and
necessary steps shall be taken within four weeks from
uploading of this order.
iv. The Petitions are disposed of, with no order as to
costs."
7. As evident from the above judgment, the position in law is no longer res
integra having been repeatedly decided. Even in the present case, the impugned
letter/communication dated 16th February 2021 proceeds on an incorrect basis that the
NOC of the Collector is required prior to effecting a mutation. This is clearly contrary
to the body of law laid down by this Court as referred to in the above judgment passed
by this Court. It is once again reiterated that no such NOC of the Collector is required
as a pre-condition for the CSO to effect a mutation in the revenue records, and on this
ground alone the impugned letter/communication must be quashed and set aside.
8. As regards the submission on behalf of the CSO that there is an alternate
remedy, it is first and foremost eminently arguable that the impugned letter /
communication is not in fact an order or decision as contemplated under Section 247.
Be that as it may, we believe that there is merit in the contention of the Petitioner that
there has been a completely incorrect exercise of jurisdiction, and indeed a failure to
exercise jurisdiction and to carry out the mutation, by the CSO, and the writ Court is
certainly entitled to intervene in such matters and ensure that arbitrary action, in
breach of statutory provisions, is not allowed to be perpetuated.
Kanchan P Dhuri 9 / 11 WPL-7537-2021.odt
9. As regards the contention based on the Government Resolution dated 3 rd
August 2019, this issue has already been decided in the above judgment pronounced
by this bench on 21st December 2021. It is clear that the Government Resolution will
have no application in the present case, wherein the issue is limited to merely effecting
a mutation in the revenue records. It is once again clarified that this Court is not
opining on whether the Collector is entitled to levy any sum towards unearned
income; if any such claim is made, the same shall be proceeded with/opposed on its
own merits, and all rights and contentions of the parties in this regard are kept open.
10. Similarly, the issue of Section 37A of the Maharashtra Land Revenue
Code, 1966 has already been decided and in virtually identical facts we have held that
Section 37A can have no application to a property transferred prior to 3 rd March 2015.
Given that the Conveyance in the present case is much prior to this date, for the same
reasons as set out in the judgment reproduced above, we hold that Section 37A does
not apply to the subject property.
11. As regards the twin contentions that the Petitioner is seeking, through
this application for mutation, to effectively obtain permission for development, and
that the terms of the Form HH are required to be complied with, we fail to see how
any of this arises in the present case. The issue at hand is restricted to a mutation in
the revenue records, and were the same to be done, it would in no manner constitute
development permission. Likewise, merely allowing a mutation to be carried out in the
Kanchan P Dhuri 10 / 11 WPL-7537-2021.odt
revenue records would not constitute sanction to the Petitioner to carry out any
construction in breach of the terms of the Form HH. We make it clear that we have
expressed no opinion on the terms of the Form HH and their applicability or
otherwise in the redevelopment process.
12. As regards the judgments relied upon by the Petitioner, the judgment in
Ghanshyamdas Agarwal (supra) we fail to see how the same has any application in this
case. There is no proposed action contemplated to be taken by the relevant authorities,
as appears to be the case in the judgment relied upon by Respondent No. 3. The
judgment does not further the case of Respondent No. 3. As regards the judgment in
Venkatesh Sadan CHSL (supra), the same equally does not take the matter any further.
We have already held that the Government Resolution dated 3 rd August 2019 will have
no application in the facts of the present case, and therefore there is no question of
remanding the matter to any authority to consider the applicability, or otherwise,
thereof.
13. In the circumstances we pass the following Order:
(i) The impugned letter/communication dated 16 th February 2021 is
quashed and set aside. Rule is made absolute in the above terms.
(ii) The application filed by the Petitioners shall forthwith be processed by
the City Survey Officer without insisting on the NOC or permission of the Collector.
(iii) The above application shall be processed, and necessary steps shall be
Kanchan P Dhuri 11 / 11 WPL-7537-2021.odt
taken within four weeks from uploading of this order.
(iv) The above Writ Petition is disposed off, with no order as to costs.
( MILIND N. JADHAV, J. ) ( S.J. KATHAWALLA, J. )
Digitally
signed by
KANCHAN
KANCHAN PRASHANT
PRASHANT DHURI
DHURI Date:
2022.02.14
12:28:34
+0530
